Zorich v. St. Louis County et al

Filing 44

MEMORANDUM AND ORDER re: 38 IT IS HEREBY ORDERED that plaintiff's motion for leave to file a first amended complaint [Doc. #38] is denied.. Signed by District Judge Carol E. Jackson on 11/14/16. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANGELA ZORICH,
Plaintiff,
vs.
COREY ZAVORKA, et al.,
Defendants.

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No. 4:15-CV-871 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motion for leave to file a first
amended complaint. Defendants have filed a response in opposition to the motion.
I.

Background

On April 29, 2014, the St. Louis County Police Tactical Response Unit
executed a search warrant at plaintiff’s home in St. Louis County. Plaintiff alleges
that defendant Robert Rinck, a St. Louis County police officer assigned to the
“problem properties unit,” obtained the warrant even though she had agreed to
make arrangements for him to inspect her home. Plaintiff further alleges that the
Tactical Response Unit battered in her front door while she and other family
members, including a child, were present. Defendant Corey Zavorka, the first
officer who entered the home, shot and fatally wounded the family dog. Plaintiff
was removed from her home and the search was conducted.
On June 2, 2015, plaintiff filed this action pursuant to 42 U.S.C. § 1983,
claiming that defendants Rinck and Zavorka violated her rights under the Fourth,
Fifth and Fourteenth Amendments to the United States Constitution. Plaintiff also
asserts state law tort claims. On August 18, 2015, the Court dismissed plaintiff’s

claim that St. Louis County was liable for the constitutional violations committed by
the individual defendants based on the theory of respondeat superior. [Doc. # 17].
On September 16, 2015, the Court entered a Case Management Order (CMO)
that established October 16, 2015, as the date by which the parties could amend
pleadings or join additional parties without leave of court. [Doc. #24].

On July

29, 2016, some nine months after the amendment/joinder deadline passed, plaintiff
filed a motion to modify the CMO. As grounds for the modification request, plaintiff
stated that she had obtained new counsel who needed additional time to review the
case. She also stated that, in the course of discovery she had obtained additional
information regarding “St. Louis County policies, practices, and customs” as well as
“certain . . . supervisory personnel.” [Doc. # 34]. Plaintiff attached a proposed
amended CMO to her motion. The proposal did not include any modification of the
October 16, 2015 deadline for amending pleadings and adding parties.

Although

plaintiff stated that she intended to file a motion for leave to amend her complaint
along with a proposed amended complaint “contemporaneously” with the motion to
modify, she did not do so. [Doc. #34 at ¶5].
The Court granted plaintiff’s motion to modify and an amended CMO was
entered on August 15, 2016. [Doc. #36]. The deadline for amending pleadings and
joining parties was not extended.
On October 28, 2016, plaintiff filed the instant motion for leave to amend her
complaint to add three new defendants, assert a new claim against defendant
Zavorka, and assert three claims against St. Louis County for municipal liability
pursuant to Monell v. Dept. of Soc. Servs., 436 U.S. 658 (1978).

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II.

Discussion

Both the original and the amended Case Management Orders established
October 16, 2015, as the deadline for amending pleadings and joining parties. In
order to amend after this deadline, plaintiff must satisfy the standard for modifying
scheduling orders set forth in Rule 16 of the Federal Rules of Civil Procedure.1
Under Rule 16, a case management order “may be modified only for good cause.”
Fed.R.Civ.P. 16(b)(4). “The primary measure of good cause is the movant’s
diligence in attempting to meet the [scheduling] order’s requirements.” Sherman v.
Winco Fireworks, Inc., 532 F.3d 709, 716–17 (8th Cir. 2008) (quoting Rahn v.
Hawkins, 464 F.3d 813, 822 (8th Cir. 2006)). “While the prejudice to the
nonmovant resulting from modification of the scheduling order may also be a
relevant factor, generally, [the court] will not consider prejudice if the movant has
not been diligent in meeting the scheduling order’s deadlines.” Id. at 717; see
Freeman v. Busch, 349 F.3d 582, 589 (8th Cir. 2003) (affirming the district court’s
denial of plaintiff’s motion to amend her complaint for failure to show good cause);
Trademark Med., LLC v. Birchwood Labs., Inc., 22 F. Supp. 3d 998, 1004 (E.D. Mo.
2014) (rejecting plaintiff’s argument that new discovery justified late amendment of
pleadings).

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In support of her motion for leave to amend, plaintiff relies on Rule 15(a), Fed.R.Civ.P,
which governs the pretrial amendment of pleadings and states that where an amendment is
not sought “as a matter of course”—as defined by the Rule—“a party may amend its
pleading only with the opposing party’s written consent or the court’s leave. The court
should freely give leave when justice so requires.” Winco Fireworks, Inc., 532 F.3d at 715
(quoting Fed.R.Civ.P. 15(a)(2)). However, once the time for amending pleadings and joining
parties as established by a scheduling order has expired, the party seeking leave must
satisfy Rule 16(b)’s “good cause” standard. Id. Despite proceeding under Rule 15, plaintiff’s
motion and memoranda in support provide sufficient information for the Court to determine
whether she has demonstrated the necessary diligence.

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Plaintiff states that the delay in seeking leave to amend her pleadings is
justified because defendants did not produce the St. Louis County policies giving
rise to the Monell claims until June 22, 2016, well after the deadline for responding
to plaintiff’s document requests served in October 2015. In addition, plaintiff did
not receive the report from her expert witness until early July 2016. These facts do
not explain why plaintiff did not file her proposed amended complaint on July 29,
2016, when she stated that she had already identified both the additional parties
and the policies upon which her Monell claims are based. Plaintiff asserts that new
counsel required additional time to become familiar with the evidence produced in
discovery and the pleading requirements for Monell claims. The time to address this
need was on July 29, 2016, when plaintiff moved to modify the other deadlines in
the Case Management Order.
The Court finds that plaintiff has not shown good cause for extending the
deadline to amend pleadings and join parties.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion for leave to file a first
amended complaint [Doc. #38] is denied.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 14th day of November, 2016.

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